SZMFB v Minister for Immigration

[2008] FMCA 1442

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMFB v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1442

MIGRATION – Review of RRT decision – where Tribunal made adverse credibility finding – where evidence of summonses tendered by applicant – where Tribunal considered documents were not corroborative of applicant’s claims – whether Tribunal entitled to give no weight to documents.

Migration Act 1958 (Cth), s.48B

Re Minister for Immigration; Ex parteDurairajasingham (2000) 168 ALR 407
Re Minister for Immigration; Ex parte S20/2002 (2003) 198 ALR 59
WAIJ v Minister for Immigration [2004] FCAFC 74
WACO v Minister for Immigration [2003] FCAFC 171
WAKK v Minister for Immigration [2005] FCAFC 225

Applicant: SZMFB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1087 of 2008

Judgment of: Raphael FM

Hearing date: 11 August 2008

Date of last submission: 15 October 2008

Delivered at: Sydney

Delivered on: 21 October 2008

REPRESENTATION

Counsel for the Applicant: Mr B Adam

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1087 of 2008

SZMFB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. He arrived in Australia on 25 December 2005 on an Indonesian passport made out in a name that was not his own. Under that name and passport he unsuccessfully applied for a protection (Class XA) visa on 19 January 2006. The applicant was detained and subsequently admitted that he was a Chinese national. On 14 November 2007 the Minister exercised his discretion under s.48B of the Migration Act 1958 (Cth) (the “Act”) to allow the applicant to make a fresh application for a protection visa. The application was lodged on 28 November 2007. The applicant was interviewed by a delegate who refused to grant a protection visa on 7 January 2008. On 9 January 2008 the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. The applicant attended a hearing before the Tribunal where he was represented by his migration agent. The agent made several written submissions to the Tribunal. On 19 March 2008 the Tribunal wrote to the applicant care of his agent inviting him to comment on or respond to information that the Tribunal considered would, subject to any of those comments or responses, be the reason or part of the reason for affirming the decision under review. The agents responded by letter dated 28 March 2008. On 2 April 2008 the Tribunal determined to affirm the decision not to grant a protection visa.

2. The applicant sought judicial review of the Tribunal’s decision by way of an application filed in this court on 30 April 2008.  The grounds of the application are threefold.

   “1. The second respondent made an error going to jurisdiction in that the tribunal failed to inquire about information relevant to the decision.  The applicant tendered in evidence two certificates of summons to attend the Yinxi Police Station in support of his claim that he was detained and tortured for a convention reason.  The summonses were in Mandarin.  The summonses were not translated into English.  The summonses were readily available material that were centrally relevant to the decision to be made.  A translation of the summonses may have assisted the Tribunal to determine the reasons for which applicant was detained.  In making a decision without inquiring further about this information, the Tribunal made a jurisdictional error.

   2. The second respondent made an error going to jurisdiction by failing to give weight to the summonses tendered by the applicant because of the tribunal’s perception that the applicant lacked credibility. The tribunal misconstrued the effect and authority of Re MIMA Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (“S20”). In S20, the evidence of the impugned witness was corroborative and brought into existence for the purpose of the hearing. In the present case, the summonses were of primary relevance and brought into existence while the applicant was still in China. The tribunal’s purported reliance on S20 is an error of law.

   3.   The second respondent made an error going to jurisdiction that, in failing to inquire about the summonses, and failing to give weight to the summonses by reason of misconstruing the law, the tribunal failed to take a relevant consideration into account.  The summonses were of primary relevance.  In making a decision without taking the evidence of the summonses into account, the tribunal made a jurisdictional error.”   

   When the matter came before the court on 11 August 2008 the summons documents referred to in the application were not reproduced in the court book.  The applicant was represented by counsel.  The court expressed its concern over this failure to include important evidence.  The applicant’s counsel made submissions relating to the summonses and the failure to obtain a translation.  The court adjourned the matter so that the Minister’s representative could provide further information relating to these summonses.  A supplementary court book was filed together with written submissions by the Minister.  At

   
   

   [CB 59] and [60], [61] and [62] are found translations and photocopies of the original of the relevant summonses.  As at 13 October 2008 the court had received no further representations on behalf of the applicant. 

3. The applicant’s grounds for claiming that he is a person to whom Australia owes protection obligations are twofold.  First he says that he is a member of the underground Shouter’s Church.  Second he says that he was involved in a land dispute when certain property that had been given to him by the local municipality was requisitioned by developers who proposed to pay the land owners only one tenth of its proper price.  It appears that in combination these two matters led to him being summonsed by the PSB, firstly in March 2004.  In a letter to the Minister dated 28 January 2007 [CB 58] the applicant says:

   “This document is a certificate of summons issued to me on 22 March 2004 by the Yinxi Police Substation in Fuqing City.  At that time, I tried to assist them in their interrogation but they forced me to innocently admit to be one of the leaders in gathering the villagers to make trouble in the land conflict incident as well as one of the participants in the underground church.  Because I resolutely refused to admit it and under the circumstances in which they lacked the evidence, they tried to give me a sound beating and maltreated me … forcing me to admit to my crimes.  However, I never let them have their own way.  So, in less than 24 hours, they released me.

   After I was released, I lived daily in fear as I did not know when I would be arrested by them again.  However, for our land to be reasonably compensated for, for my belief, we kept struggling but towards the last did not succeed.”

4. The second summons was issued on 11 May 2004 and in this regard the applicant says [CB 58]:

   “This document is the certificate of summons issued to me on 11 May 2004, against by the Yinxi Police Substation in Fuqing City.  Because I was fearful that I might be soundly beaten by them in the police substation and that I might be left with disabilities or even beaten to death, I did not go to the police substation as the certificate of summons required in terms of the time and place.  Instead, I secretly escaped to Indonesia to seek refuge.”

5. The Tribunal questioned the applicant upon the statements contained in his application, upon the statements made by him in the interview with the delegate, upon his Christian belief and upon the land claim.  The Tribunal did not find the applicant a credible witness.  It considered that the responses showed a propensity to tailor evidence in a manner which achieved his own purpose.  It had asked the applicant a number of questions about the Shouter’s Church and did not consider that the responses he made indicated any depth of knowledge.  It did not accept the submissions put to it by the applicant’s agents that the applicant’s concern was for the religion rather than the organisation which propounded it.  The Tribunal believed that if the applicant had been a genuine member of the Shouter’s Church for the length of time which he alleged he would know more about it than he apparently did.  By the same token the Tribunal accepted that the applicant had a reasonable knowledge of the Christian religion and came to the conclusion that he was a reasonably regular attendee of the Chinese official churches.  The Tribunal pointed in its findings and reasons to inconsistencies in the applicant’s evidence which led it to come to the conclusion that the applicant’s commitment to practising Christianity was lukewarm.  The Tribunal did not accept that the applicant’s exposure to Christianity in this country would lead him to associate himself with underground churches in China should he be returned to that country.

6. In regard to the land claim the Tribunal accepted that there was some substance in this story but:

   “The applicant’s claimed participation in the protest took place in early 2003.  No further activities took place after that.  The applicant claimed that a few days after the si- in the PSB stepped in as they knew “the whole story”.  However, he was not summoned until March 2004.  At the hearing the applicant failed to provide a persuasive explanation as to why it had taken the authorities more than a year to issue the summons, particularly if they were aware of all the details.  The applicant’s evidence in relation to his role in the protest wavered throughout the process.  Nevertheless, whilst he stated that he was not, in fact a leader in the protest activities, he indicated that he might have played some kind of informal leadership role in deciding what steps needed to be taken.  If the applicant’s evidence in this regard is to be believed, then the PSB would have had every reason to question the applicant at an earlier stage.” [CB 192]

7. The Tribunal was not satisfied with the applicant’s explanation as to why he had been released after 24 hours detention.  It noted that after this release he was summonsed again some six weeks later:

   “There was no explanation in the applicants’ [sic] evidence for this clumsy approach to his case, if any, by the authorities.  As it was put to him at the hearing, if the authorities were so interested in him to issue him with another summons, it would have been easy for them to find him in Fuzhou before his departure.  The Tribunal, therefore, does not accept that he was targeted, summoned, detained and mistreated by the authorities in China for the reasons he has provided.” [emphasis added] [CB 192]

8. Leaving aside the question of the summonses and their translation, this would appear to be an unexceptional case of a Tribunal failing to be satisfied of an applicant’s credibility, a matter which is a finding of fact “par excellence”: Re Minister for Immigration; Ex parteDurairajasingham (2000) 168 ALR 407 per McHugh J at [67]. Upon the evidence contained in the court book the Tribunal was entitled to come to the views it expressed and there is no suggestion that the Tribunal was not entitled to consider those statements it found to differ from earlier ones as inconsistent. The Tribunal’s views upon the applicant’s commitment to the Shouter’s Church were open to it on the evidence for the reasons that it gave.

9. The summonses were of concern at the first hearing because it was known that they existed but there was no evidence that they had ever been translated.  We now know that they have been translated and the translations were before the Tribunal.  The Tribunal’s reasons appear to accept the translation submitted by the applicant.  The translations found at [CB 59] and [60] are as follows:

   “Certificate of Summons

   Yinxi Police Substation, Fuqing City Bureau of Public Security

   No. 04322

   Lu Bin and Liu Fumin, from this substation, summon Citizen [applicant], residing at [address], Yinxi Town, to come to this substation at 2pm on the afternoon of 22 March 2004, with this certificate to receive the summons.

   22 March 2004
   Fuqing City Bureau of Public Security”

   “Certificate of Summons

   Yinxi Police Substation, Fuqing City Bureau of Public Security

   No. 04511

   Lu Bin and Liu Fumin, from this substation, summon Citizen [applicant], residing at [address], Yinxi Town, to come to this substation at 9am on the morning of 11 May 2004, with this certificate to receive the summons.

   11May 2004
   Fuqing City Bureau of Public Security”

   These translations give no indication of why the applicant is being summonsed.  The Tribunal’s reasoning and in particular that part referring to the summonses which is found at [CB 192] and set out fully at [7] of these reasons does not suggest that the summonses are a forgery, nor does it suggest that the Tribunal did not give any weight to the documents because the applicant’s previous inconsistencies had poisoned the well of evidence: Re Minister for Immigration; Ex parte S20/2002 (2003) 198 ALR 59 (“S20/2002”).  A careful reading of the words used by the Tribunal would appear to indicate that the Tribunal was not prepared to accept that the summonses related to the claims.  They could, one would infer, have related to motoring offences or any other totally unrelated activity.  The Tribunal would be entitled to come to this view from the content of the documents as translated by the applicant (which is putting the translations at their very highest) because they make no mention of the reasons for the summons.

10. On 15 October 2008 the applicant, through his counsel, provided the court with his further written submissions.  He sought in those submissions to distinguish this case from S20/2002 where the High Court, McHugh and Gummow JJ considered that the matter before them was one of those cases “where a Tribunal of facts justified it giving no weight to evidence corroborative of the applicant’s case because the well had been poisoned beyond redemption” [submissions para 4].  The applicant argued:

    “The documents that the Tribunal chose to disregard are the official documents of the oppressive organ of the State and constituted an independent evidence of the Applicant being a person of interest to the Chinese authorities.  These official documents of their nature were not susceptible to contamination by the Applicant, and are a type of evidence the Tribunal should have had regard irrespective of whatever preliminary view the Tribunal might have formed about the Applicant’s character.”

11. I am of the view that these submissions do not assist the applicant for the reasons given in paragraph [9]. In these circumstances S20/2002 does not need to be distinguished.  It is irrelevant.  The Tribunal had given a number of reasons why it did not believe that the applicant was a credible witness.  I have discussed them above.  The Tribunal was entitled to give no weight to the documents because the documents did not on their face make reference to the applicant’s religious or land claim activities as a reason for him being summonsed to attend.  The Tribunal is entitled to decline to accept the applicant’s statement that these documents did refer to those activities on the basis of its lack of conviction as to his credibility.  The documents only have corroborative value because the applicant says they do.  There is nothing in them which would give corroborative value.  In those circumstances, to resort to S20/2002 is not necessary for the respondent and the cases which suggest a requirement for the Tribunal to take into account corroborative evidence (WAIJ v Minister for Immigration [2004] FCAFC 74; WACO v Minister for Immigration [2003] FCAFC 171; WAKK v Minister for Immigration [2005] FCAFC 225) are not enlivened because the documents did not corroborate the applicant’s well founded fear for a Convention reason.

12. On this basis the application must be dismissed and the applicant must pay the first respondent’s costs which I assess in the sum of $4,750.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  21 October 2008